Why Should Anyone Worry About Whose Communications Bush and Cheney Are Intercepting, If It Helps To Find Terrorists?

Although the Bush Administration does not encourage public debate over decisions it has made regarding how to govern, more and more people are asking questions about the ways and means employed during this presidency.

In my last column, I addressed the seemingly irresolvable issue of the allocation of government powers - among the president, Congress and the federal courts - regarding matters of national security. Since then, the debate about the Bush Administration's refusal to comply with the Foreign Intelligence Surveillance Act - and its parallel insistence on defending its warrantless wiretapping -- has only continued.

Both Republicans and Democrats have raised questions about the administration's defiance of the law in the name of fighting terrorism. One organization at the forefront of concern about this blatant lawbreaking is the ACLU - which recently convened a panel in Washington to discuss this subject. This broad-based dialogue, in which I participated, certainly added to my understanding. Not surprisingly, it raised issues that need further attention.

One, in particular, that has been gnawing at me, is the question why anyone should worry about the government listening in on conversations if they are doing nothing wrong. This is an old question that often arises in issues relating to privacy. Yet frankly, it still annoys me every time it is asked.

The Why-Should-I-Worry Question

The NSA surveillance program seeks to uncover persons in the United States who are conversing internationally and by telephone or email with known al Qaeda organization or operative abroad, or with affiliates of such organizations and operatives.

"I am not personally worried about the government listening to any of my conversations, for not only do I not know anyone even remotely connected with terrorism," one questioner said to me after the panel, "But furthermore, I would be happy to give up my privacy," she said, "if it helps to find terrorists." This young lady wanted to know why others were so concerned about the government's using the latest technology to find terrorists.

Let's set aside the issue of whether the President can simply ignore the FISA law validly enacted by Congress - and signed by a prior president. I will return to that in another, later column, for it is an important question that is not going to go away. Here, I will look only at the issue of whether the average American has anything to truly be worried about, as NSA electronically sifts through endless digital exchanges to find the proverbial needle-in-a-haystack.

One Reason Americans Should Worry: Data Mining Makes Mistakes

The details of the NSA surveillance program remain cloaked in secrecy. None of the experts with whom I spoke had any knowledge of its operations, other than what has been leaked, principally to New York Times reporter James Risen. In his book, State of War: the Secret History of the CIA and the Bush Administration - a fascinating and alarming read because it reveals ongoing incompetence within the intelligence community - Risen himself provides some details.

"The NSA is now eavesdropping on as many as five hundred people in the United States at any given time," Risen writes, "and it potentially has access to phone calls and e-mails of millions more." He adds that "NSA is now tapping into the heart of the nation's telephone network through direct access to key telecommunications switches that carry many of America's daily phone calls and e-mail messages."

Experts believe the way NSA is handling such masses of digital traffic is probably by what is called "data mining" - the use of computer algorithms to search automatically through massive amounts of data.

They also believe that the greatest threat that such non-human snooping has for the average American is that it frequently produces false positives. This is a point that was made by Jim Harper, Director of Information Policy Studies at the Cato Institute, during the ACLU's panel discussion.

Data mining's search tools, according to experts, are not particularly accurate at flushing out terrorists. Indeed, such electronic sleuthing frequently makes mistakes in who it tags as targets.

The government may claim data mining is accurate - but Americans ought to be wary: Even greater claims of accuracy are typically made for fingerprint identification, and that has already gone grievously wrong in one notorious war on terror example.

Fingerprints on a bag holding detonators involved in the 2004 Madrid subway terror attacks were supposedly linked to Portland, Oregon attorney Brandon Mayfield. As a result, Mayfield - also suspicious in authority's eyes because he'd converted to his wife's religion, Islam -- found himself in solitary confinement for two weeks as a "material witness." But in the end, the FBI was wrong; the prints weren't his.

With Data Collection Greatly Increased, Where Is All The Data Going?

Aside from the potential of mistakes, an even more serious problem is the remarkable increase in collection of data about Americans. While computers certainly make our life easier, and it is difficult now to imagine how we got along before the Internet, we pay a price in privacy for these marvels.

Literally gigantic amounts of digital data are being collected about almost every American: data that is connected to credit cards, airline tickets, motor vehicle licenses, health records, business records, satellite pictures of your home, and more. No organization gathers and hoards more private information than the federal government.

It was the mining of both privately-collected and government-collected data, that the Department of Defense's Total Information Awareness (TIA) program envisioned exploiting. Congress may have rejected the TIA program, but the technology has not been rejected. In fact, many believe it is being employed by NSA in its electronic surveillance of Americans. (If so, Congress may have been bypassed twice - with not only its passage of FISA, but its clear-cut rejection of the TIA program, ignored by the executive.)

With NSA listening to some five-hundred telephone calls at any given time and apparently potentially capturing millions others, mountains of digital information are accumulating. There is no oversight of the NSA program. And under the Patriot Act, the information NSA is gathering can be shared with other law enforcement authorities.

Many people trust the government not to abuse or misuse this information. Based on experience, I don't. But if you do, imagine what a hacker might do after cracking into all that private and government information - the kind of security breach that happens every day. Such hacking could trigger scenarios that range from blackmail to graymail to identity theft, to others knowing more about you and your life than even you may know.

If none of that bothers you, then you are an exception.

Americans Have Become Increasingly Concerned With Loss of Privacy

In 1970, only thirty-four percent of Americans were "concerned about threats to their personal privacy." By 1978, though, that number had reached sixty-four percent. In 1990, those concerned had risen to seventy-nine percent. In 1995, eighty-two percent of the American public was concerned, and the latest poll numbers for 2005 show close to ninety percent are concerned.

In short, if you are not concerned, you are a bit out of touch with reality. But not everyone believes there is wisdom in crowds.

Unable to find any breakdown by age, and taking into account the fact that mostly young people have raised this issue with me, I am inclined to believe it is the younger generation who are the ten percent who are unconcerned about their privacy. Indeed, one need only read some blogs, or view video blogs, that young people post to appreciate that we have spawned a generation of serious exhibitionists, who want to share their innermost thoughts (and personas) with the world. Maybe that is good, in an ironic way -- for personal privacy, and many other rights, may be on the way out. At least this one segment of the population won't feel the loss.

The jurisprudence of constitutional privacy is still relatively recent. And many scholars believe that rights such as the right of privacy - rights that we now take for granted -- although broadly embraced in the Bill of Rights, only acquired their current form following World War II - largely in reaction to the atrocities of Hitler's Germany and Stalin's Russia.

For example, the Fourth Amendment - which is at the heart of the debate over the NSA surveillance and data collection focused on Americans - has merely reverted back to what Akhil Amar argues its language requires: that searches need only be "reasonable." It was not until 1948 that Justice Jackson wrote in Johnson v. United States that "reasonable" was not enough for a search; rather the standard should be higher - "probable cause."

Jackson perceptively added, "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." In other words, it's for the courts, not the executive branch, to judge whether a search is legal.

Why did Jackson reach this conclusion? "Any other rule would undermine 'the right of the people to be secure in their persons, houses, papers and effects,'" he explained, "and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law." These distinctions sting in an era where the NSA has refused to operate "under the law" - that is, under FISA and, indeed, under the Fourth Amendment itself.

Jackson's reaction to the police-state (read: the state hallmarked by totalitarianism or fascism) is indicative of the rights that grew from these negative histories. As Richard Primus writes in The American Language of Rights, "Reaction against Sovietism and Nazism helped bring about major shifts in the rights of free expression, racial equality, and individual privacy. A new vocabulary of 'human rights' arose to carry the content of those political commitments and to link them with a broader idea rarely seen in the generation before the war but ascendant thereafter: that certain rights exist and must be respected regardless of positive law." Needless to say, positive law - in the form of statutes, and Supreme Court precedents interpreting the Constitution -- followed.

To those who don't worry about giving up their rights, programs like the NSA's may seem fine. But others of us appreciate the blood and treasury this nation expended, both indirectly and directly, in securing those rights. And I am convinced my generation will fight to the end to prevent the zeal of good intention in fighting terror, from letting the terrorists win by permitting the government to take those rights.

John W. Dean, a FindLaw columnist, is a former counsel to the president.